Plaintiff
filed a motion to proceed in forma pauperis along
with this civil rights action pursuant to 42 U.S.C. §
1983. On May 8, 2017, the Court ordered Plaintiff to show
cause why this action should not be dismissed based on his
poverty allegations that appeared to be untrue. (Doc. 7.) The
Court noted that Plaintiff has another case pending in this
Court, Walker v. Wechsler, et al., 1:16-cv-01417-JLT
(the Wechsler case), in which the defendant filed a
motion to dismiss asserting that Plaintiff made an untrue
allegation of poverty. See Wechsler case, at Doc.
26.

I.
Legal Standard

An
indigent party may be granted permission to proceed in
forma pauperis upon submission of an affidavit showing
inability to pay the required fees. 28 USC § 1915(a).
The determination as to whether a plaintiff is indigent and
therefore unable to pay the filing fee falls within the
court's sound discretion. California Men's Colony
v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991) (reversed
on other grounds).

“The
trial court must be careful to avoid construing the statute
so narrowly that a litigant is presented with a Hobson's
choice between eschewing a potentially meritorious claim or
foregoing life's plain necessities.” Temple v.
Ellerthorpe, 586 F.Supp. 848, 850 (D.R.I. 1984), citing
Potnick v. Eastern State Hospital, 701 F.2d 243, 244
(2d Cir. 1983) (per curiam); Carson v. Polley, 689
F.2d 562, 586 (5th Cir. 1982). “But, the same
even-handed care must be employed to assure that federal
funds are not squandered to underwrite, at public expense,
either frivolous claims or the remonstrances of a suitor who
is financially able, in whole or in material part, to pull
his own oar.” Temple, 586 F.Supp. at 850,
citing Brewster v. North American Van Lines,
Inc., 461 F.2d 649, 651 (7th Cir. 1972).

In the
motion to dismiss in the Weschler case, the
Defendant submitted evidence that on September 19, 2016,
exactly three months before Plaintiff filed this action and
his accompanying motion to proceed in forma
pauperis, Plaintiff received $10, 000 in settlement of a
legal action in the Northern District of California,
Walker v. Jones, et al., 08-cv-0757 (“the
Jones case”). Id., Doc. 26, Doc.
27-1.[1] As noted in the OSC in this case, in
response to the question on his in forma pauperis
applications in this case and the Weschler case
whether he had received any money from “Any other
sources” in the twelve months prior to filing the
actions, Plaintiff marked both the line for “Yes”
and “No.” Compare 1:16-cv-1886, Doc. 2,
p. 1 with 1:16-cv-1417, Doc. 2, pp. 1-2.

In
response to the OSC, Plaintiff acknowledges that he received
a $10, 000 settlement in the Jones case, but
contends that the money went to pay “past
obligations.” (Doc. 8, p. 1.) To this end, Plaintiff
lists “8000.00 or so on re-opening business Under Aces
roses on line store set up;” that he gave $700.00 to
his mother and father; “phone bill 25.00 every two
weeks or so;” that he borrowed $300 from friends which
allowed him “to go to the store to pay [sic]
cosmetics;” and that he had to pay a secretary and
“past bills from collectors.” (Id.) He
does not report these latter The Court takes amounts.
(Id.) Plaintiff states that he did not lie or make
untrue statements. (Id.)

Proceeding
“in forma pauperis is a privilege not a
right.” Smart v. Heinze, 347 F.2d 114, 116
(9th Cir. 1965). A party need not be completely destitute to
proceed in forma pauperis. Adkins v. E.I. DuPont
de Nemours & Co., 335 U.S. 331, 339-40 (1948).
However, “[i]f an applicant has the wherewithal to pay
court costs, or some part thereof, without depriving himself
and his dependents (if any there be) of the necessities of
life, then he should be required, in the First Circuit's
phrase, to ‘put his money where his mouth
is.'” Williams v. Latins, 877 F.2d 65 (9th
Cir. 1989) (affirming district court denial of in forma
pauperis where in past 12 months, plaintiff received a
sum of $5, 000 settling a civil action and no indication it
was unavailable to plaintiff) (citing, Temple, 586
F.Supp. at 851(quoting In re Stump, 449 F.2d 1297,
1298 (1st Cir. 1971) (per curiam)).

In sum,
to proceed in forma pauperis, a plaintiff need not
demonstrate that he is completely destitute, but his poverty
must prevent him from paying the filing fee and providing his
dependents with the necessities of life. See Adkins v.
E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40
(1948). A “‘showing of something more than mere
hardship must be made.'” Nastrom v. New Century
Mortg. Corp., No. 11-cv-1998, 2011 WL 7031499, at *1
(E.D. Cal. Dec. 7, 2011) (quoting Martin v. Gulf States
Utilities Co., 221 F.Supp. 757, 759 (W.D. La.1963)),
report and recommendation adopted by, 2012 WL 116563 (E.D.
Cal. Jan.12, 2012). Plaintiff has not shown that he has any
dependents who would have been deprived of the necessities of
life if he paid the filing fee and, since Plaintiff is
currently civilly detained, the State of California is paying
for his necessities of daily life. Williams, 877
F.2d 65.

Plaintiff
accounts for spending approximately $9, 025 of his settlement
proceeds, but he fails to account for $975.00 -- which would
have been more than sufficient to pay the $400 filing fee for
this action. Further, even if Plaintiff had spent every penny
of settlement proceeds from the Jones case, the
Court is entitled to consider the economic priority Plaintiff
placed on the use of his settlement proceeds. See
Olivares v. Marshall, 59 F.3d 109, 112 (9th Cir. 1995)
(citing Alexander v. Carson Adult High School, 9
F.3d 1448, 1449 (9th Cir. 1993). A district court is entitled
to honor an inmate's decision of other use of available
funds which the inmate considered more worthwhile than
payment of a federal court's filing fee. See
Olivares, at 112, (quoting Lumbert v. Illinois
Department of Corrections,827 F.2d 257, 260 (7th Cir.
1987) (Noting peanut and candy “comforts”
Olivares purchased in the prison commissary; “If the
inmate thinks a more worthwhile use of his funds would be to
buy peanuts and candy ... than to file a civil rights suit,
he has demonstrated an implied evaluation of the suit that
the district court is entitled to honor.”).) Here,
Plaintiff clearly prioritized online purchases, a monetary
gift to his parents, and other past debts over his obligation
to pay the filing fee in this action. The Court advised
Plaintiff that choosing to spend his money or give it away
rather than use it to pay his filing fee, while
understandable, would not justify his application to proceed
in forma pauperis. (Doc. 7, p. 2, n. 2.) Despite
this, his report merely demonstrates that he preferred to
spend his money other than on paying his filing fee.

The
determination whether a party can proceed in forma
pauperis is a “matter within the discretion of the
trial court and in civil actions for damages should be
allowed only in exceptional circumstances.” Weller
v. Dickinson, 314 F.2d 598, 600 (9th Cir. 1963); see
also Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir.
1984) (“court permission to proceed in forma pauperis
is itself a matter of privilege and not right; denial of in
forma pauperis status does not violate the applicant's
right to due process”). It is immaterial whether
Plaintiff chose to spend the settlement proceeds from the
Jones case elsewhere, or retained some that he could
have used to pay the filing fee for this action but chose not
to do so. Plaintiff had $10, 000 at his disposal within three
months of the date he filed this action. He thus did not
qualify as impoverished when he filed his application to
proceed in forma pauperis.

RECOMMENDATION

Accordingly,
the Court RECOMMENDS that Plaintiff's application to
proceed in forma pauperis, filed on December 19,
2016 (Doc. 2), be DENIED and that Plaintiff be required to
pay the $400.00 filing fee to proceed in this action.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;These
Findings and Recommendations will be submitted to the United
States District Judge assigned to the case, pursuant to the
provisions of Title 28 U.S.C. &sect; 636(b)(1). Within 21
days after being served with these Findings and
Recommendations, Plaintiff may file written objections with
the Court. The document should be captioned “Objections
to Magistrate Judge's Findings and
Recommendations.” Plaintiff is informed that failure to
file objections within the specified time may result in the
...

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